cumberland farms v. montague economic, 1st cir. (1996)

7/26/2019 Cumberland Farms v. Montague Economic, 1st Cir. (1996)

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USCA1 Opinion

United States Court of Appeals United States Court of Appeals

For the First Circuit For the First Circuit

____________________

No. 95-1822

CUMBERLAND FARMS, INC.,

Appellant,

v.

MONTAGUE ECONOMIC DEVELOPMENT AND INDUSTRIAL CORPORATION,

Appellee.


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____________________

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Nathaniel M. Gorton, U.S. District Judge] ___________________

____________________

Before

Cyr, Boudin and Stahl,

Circuit Judges. ______________

____________________

W. Mark Russo with whom David A. Wollin and Adler, Pol

______________ ________________ _________

Sheehan Incorporated were on brief for appellant. ____________________

Debra L. Purrington with whom Morse, Sacks & Fenton, Mart____________________ ______________________ ___

Reed, and Brown, Hart, Reed & Kaplan were on brief for appellee ____ __________________________


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____________________

March 12, 1996

____________________

STAHL, Circuit Judge. On September 21, 1990, t STAHL, Circuit Judge.


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_____________

Montague Economic Development Industrial Corporati

("MEDIC"), after reaching impasse in negotiations to purcha

from Cumberland Farms, Inc. ("Cumberland") a convenien

store in Turner's Falls, Massachusetts, took the property

eminent domain. That same day, pursuant to Mass. Gen. L. c

79, 1, the order of taking was recorded, and as a resul

Cumberland's ownership rights in the property we

extinguished. Mass. Gen. L. ch. 79, 3.

Cumberland, the owner of hundreds of convenien

stores in various states, objected to MEDIC's taki

decision. Cumberland's legal maneuvering, and i

bankruptcy, converted what began as a simple eminent doma

case into a six-year litigious war.


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We summarize briefly. Initially, Cumberla

demanded pro tanto compensation for the property, but w

MEDIC obliged, Cumberland rejected its offer and cho

instead to contest the taking. Cumberland initiated vario

state and federal court actions, all designed to frustra

the taking and to deny MEDIC possession. Eventually, in

of 1992, while still in possession of the contested propert

the Cumberland chain filed for protection and reorganizati

under Chapter 11 of the Bankruptcy Code, which furt

delayed MEDIC's gaining possession. Suffice it to say t

none of Cumberland's delaying actions had merit, and final

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on September 3, 1993, nearly three years after acquiri

legal title, MEDIC obtained physical possession of t

premises.

Previously, Cumberland had commenced a state cou

action objecting to the amount of MEDIC's original pro tan

offer and claiming reimbursement for relocation expenses a

damages. MEDIC removed the action to the United Stat


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Bankruptcy Court for the District of Massachusetts, whe

Cumberland's bankruptcy case was pending.

The bankruptcy court found that Cumberland

entitled to recover from MEDIC $380,000 as compensation f

the value of the property and $36,850 for relocation cost

reduced by $137,250 for the rental value of its use a

occupancy during Cumberland's holdover on the premise

therefore judgment was issued for the net amount of $279,60

The court allowed MEDIC's rent claim, even though the emine

domain statute did not speak to a taking entity's right

charge reasonable rent during a wrongful holdover beyond t

date when the taken premises must be vacated. The cou

disallowed Cumberland's claim for interest on t

compensation payment, because Cumberland could have accept


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the pro tanto payment and obtained use of the funds at t

time. The decision of the bankruptcy court was subsequent

affirmed by the United States District Court for the Distri

ofMassachusetts, and fromthat affirmance thisappeal followe

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On this appeal, Cumberland argues that t

bankruptcy court erred in awarding MEDIC fair market re

during the holdover period during which Cumberland

challenging the eminent domain proceeding, erred in t

amount of relocation damages awarded to it, and erred by n

awarding damages for the authority's alleged failure

provide timely and adequate relocation assistance. We fi

that none of Cumberland's arguments on appeal merit extensi

consideration.1 We review the bankruptcy court's findings

fact for clear error and subject its rulings of law to

novo review. T I Fed. Credit Union v. Delbonis, 72 F.3d 92 _____________________ ________

928 (1st Cir. 1995).

Discussion __________


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We begin with Cumberland's claim that it is n

liable for the use and occupancy charges that the bankrupt

court awarded to MEDIC, an issue that we review de novo. T

applicable Massachusetts eminent domain statute allo

Cumberland to remain on the premises for a period of fo

months after it received the notice of taking. Mass. Gen.

ch. 79, 8B. Before exercising its possessory rights, ME

was required to give Cumberland a thirty-day notice

____________________

1. Cumberland's notice of appeal included a complaint abo

the court's failure to grant interest to it on t

compensation awarded for the taking. We deem this iss

waived, as Cumberland has not referred to it in its brie

See, e.g., Willhauck v. Halpin, 953 F.2d 689, 700 (1st Ci ___ ____ _________ ______

1991) (issues not fully presented in appellate brief a

deemed waived).


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vacate, sent by registered mail or posted on the propert

Mass. Gen. L. ch. 79, 3.

The bankruptcy court found that MEDIC provi

notice of the taking to Cumberland on October 9, 1990, a

provided thirty-day notice of eviction on January 8, 199

Thus, MEDIC was within its rights in requiring Cumberland


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vacate the property by February 13, 1991. MEDIC

counterclaim to Cumberland's petition for damages sought re

for the period from February 14, 1991, to August 30, 199

when MEDIC finally obtained possession.

Although the taking statute does not address

holdover occupant's liability for the fair rental value

its use and occupancy, the Massachusetts regulation

relocation assistance appears to contemplate charges for u

and occupancy rent following a taking, because it directs

taking authority to inform a property owner of the rent to

paid during any holdover period. 760 C.M.R. 27.03(13

MEDIC, in its January 8, 1991, notice to vacate, infor

Cumberland that it would seek fair market rent if Cumberla

remained in possession.


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The bankruptcy court ruled that Cumberlan

following its failure to vacate as directed, became a tena

at sufferance, and as a result MEDIC was entitled to re

pursuant to Mass. Gen. L. ch. 186, 3, which provides t

tenants at sufferance are liable for rent during the peri

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of continued occupancy after a demand for the premises

been made. It also found that MEDIC's claim was ful

justified under a theory of unjust enrichment, becau

Cumberland's continued use of the premises was profitable

Although we find no decision exactly on point, the Supre

Judicial Court in Lowell Housing Authority v. Save- __________________________ _____

Furniture Stores, Inc., 193 N.E.2d 585, 587 (1963), appro _______________________

a taking authority's claim for use and occupancy charges fr

a tenant who remained in possession after a public housi

authority took the property from the landlord-owner

eminent domain. Cumberland argues that as an owner i _____

position is different from that of a tenant. We fi ______


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Cumberland's argument unconvincing, and that Cumberlan

wrongful holdover does not differ in any relevant regard fr

that of the tenant in Lowell Housing. See 193 N.E.2d at 58 ______________ ___

Because we find that Lowell Housing is apposite, we conclu ______________

that the bankruptcy court did not err in awarding MEDIC t

fair rental value of Cumberland's continued use and occupan

of the premises. Accordingly, we need not consider unju

enrichment, the second basis for the court's finding.

Cumberland next argues that the bankruptcy cou

erred in failing to grant all of its claimed relocati

expenses, and again our review is de novo. Specificall

Cumberland claims that the court erred in not finding that

was entitled to reimbursement for the cost of new gasoli


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pumping equipment for its new location, for license a

inspection fees, and for the cost of certain physical chan

to its new location.

We find no error in the bankruptcy court's award

relocation costs under Mass. Gen. L. ch. 79A, 7, whi


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provides that a taking authority must reimburse a proper

owner for:

1. actual documented reasonable expenses

in moving himself, his family, his

business, farm operation, or other

personal property;

2. actual direct losses of tangible

personal property as a result of moving

or discontinuing a business or farm

operation, but not to exceed an amount

equal to the reasonable expenses that

would have been required to relocate such

property, as determined by the relocation

agency; and

3. actual reasonable expenses in

searching for a replacement business or

farm.

Although the bankruptcy court awarded payment for certain

Cumberland's claimed relocation expenses as required by Mas

Gen. L. ch. 79A, 7, it denied Cumberland's request for t


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costs of obtaining new gasoline pumps, for license a

inspection fees, and for certain physical changes to its n

facility. Cumberland urges that the court erred in ruli

these expenses were not recoverable under Mass. Gen. L. c

79A, 7 and, in particular, the implementing regulation

760 C.M.R. 27.09(8), 27.09(13), and 27.09(14). MEDIC's sho

answer is that MEDIC is a taking authority governed by Mas

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Gen. L. ch. 121C, and that the relocation payment regulatio

that Cumberland relies upon apply to authorities governed

Mass. Gen. L. ch. 121A and 121B, but not to 121C agencies

See 760 C.M.R. 27.01(4) (listing activities and entities___

which the relocation payment regulations apply). We agr

with MEDIC, as did the district court, and conclude t

Cumberland is entitled to reimbursement only as provided

Mass. Gen. L. ch. 79A, 7, and not under the more expansi

provisions of 760 C.M.R. 27.09.3

Finally, Cumberland claims that the bankrupt

court erred in ruling that MEDIC had fulfilled its relocati


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assistance obligations to Cumberland. We review this factu

____________________

2. The relocation assistance regulations, in contrast to t __________

relocation payment regulations, appear to apply broadly_______

all entities authorized to take by eminent domain. See 7 ___

C.M.R. 27.01(4).

3. We note that the record contains documents provided

MEDIC to Cumberland that seem to promise reimbursement of t

types of expenses that the bankruptcy court denie

Cumberland's brief, however, does not contain any argumen

based on estoppel or similar theories. Therefore su

arguments, whatever their merit, are waived. See, e. ___ __

Willhauck, 953 F.2d at 700._________

We have not considered any of the arguments rais

by Cumberland in its Motion for Leave to Present Rebutt

Argument Pursuant to Local Rule 34.1(b). Cumberland had


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opportunity to raise rebuttal arguments in a reply brief, b

chose not to submit one. Moreover, Local Rule 34.1(

pertains to oral rebuttal during the scheduled argument, a

does not provide an opportunity for further briefing

issues after oral argument.

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finding4 for clear error, and we find no error, let alo

clear error, in the bankruptcy court's denial of Cumberlan

claims for damages due to MEDIC's failure to provi


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relocation assistance.

Affirmed. Costs to appellee. Affirmed.

________


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____________________

4. Cumberland's brief could be read to suggest that t

bankruptcy court's ruling in this regard was a le

conclusion concerning an earlier order of the Massachuset

Superior Court. Even though Cumberland has not clear

presented that argument, a de novo review of the bankrupt

court's ruling would yield the same result: no error.

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cumberland farms v. montague economic, 1st cir. (1996)

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